LM-2023-000035 - [2025] EWHC 1989 (Comm)

Chronology Part II: Immediately post signature

After the Mandate was signed, negotiations with potential lenders could begin. I accept that there were negotiations with VTB but that they had come to an end by September 2021. For understandable reasons, the evidence I have seen and heard concentrated on the involvement of Macquarie (“MacCap”).

Mr Fehmi had been in touch with MacCap before the Mandate was signed. He met Mr Newton Gillies at MacCap on 8 June 2021. On 9 July 2021, once the Mandate had been signed, he emailed Mr Newton: “with reference to the Polish real estate opportunity that we briefly discussed, I now have the mandate and would like to set up a call with the CEO/main shareholder and the CFO. Facility size could be between €100- €200 million with a mix of both performing and under development assets (warehouse, offices, and retail parks). Please let me know a few slots next week that would work for you for a call and will set it up.”

The call took place on 19 July 2021. Mr Fehmi, Dominik Leszczyński (CEO and main shareholder) and Blazej Stodulkiewicz (CFO) were, as anticipated, invited and took part. The revised group presentation sent to Mr Fehmi on 2 July 2021 (including the detailed description of the roles of Dominik Leszczyński and Blazej Stodulkiewicz) was discussed at the meeting and forwarded to Mr Gillies later that day.

Negotiations with MacCap involved numerous exchanges of “term sheets.” Almost invariably the term sheets were sent by MacCap to Blazej Stodulkiewicz and copied to a core team of Mr Fehmi, Dominik Leszczyński, Katarzyna Dorosz-Wosiek, Blazej Stodulkiewicz and Wirginia Leszczyńska.

Mr Fehmi told me that he met Wirginia Leszczyńska on 9 August 2021 and that she took him around various of the Defendant’s properties. He said Wirginia “pretty much spent the full day with me on that trip, because Dominik was on holiday. Wirginia hosted me, along with Blazej [Stodulkiewicz], took me across assets, had lunch, presented the company again with one of her colleagues, and then we had a call with [MacCap] in which Dominik dialled in.”

Wirginia Leszczyńska accepted in evidence that she had met Mr Fehmi briefly, but she could not remember when. She told she had no memory of the 9 August 2021 visit. Indeed, she suggested that she was not there at all. In evidence she told me that for the day in question she had:

“Checked my calendar and my email box on that day, and I was constantly sending the emails on that day, I had video conference with my tenant, I had no such things scheduled, and I do not remember such asset tour. Moreover, here in the asset tour we have Piano, Psary, Gliwice, Korfanty, those are offices, so I'm not even responsible for offices.”

It seems clear that documents exist which might support this evidence: for example, records of when emails were sent and possibly from where they were sent, records of the setting up, timing and duration of any video call, and documents dealing with calendar entries. At the close of business on the day when these points were raised in evidence (Thursday 20 March) I permitted Wirginia Leszczyńska to speak to her legal team about those documents so that the ongoing duty of disclosure could be complied with. On the morning of Friday 21 March (day 4 of the trial) I was told that some documents were handed to the Claimant’s legal team by the Defendant. In an unexpected turn of events, Mr Reay made it clear that he was not going to adduce the documents into evidence or ask for them to added to the trial bundle. In those circumstances, I have not seen the documents and they are of no relevance to my determination.

All indications before the date of the meeting are that it was expected that Wirginia Leszczyńska would attend. On 6 August 2021, Blazej Stodulkiewicz emailed Dominik Leszczyński. He suggested that Mr Fehmi be picked up at the airport and taken to Psary and then on to visit the other facilities. He asked Dominik Leszczyński to indicate if “anyone else should participate in the meeting I propose Wirginia [and] possibly someone from commercialization.” Dominik Leszczyński responded and agreed with Blazej Stodulkiewicz’s suggestions. He wrote: “Yes, I confirm. Very important meeting. Please present our company well… We'll describe the specifics of our sites - that's very important. Please also add Ms Aneta if Wirginia needs support.”

The evidence of what happened on the day of the meeting also supports the view that Wirginia Leszczyńska was intended to be present. Mr Fehmi was booked on the 08.35 flight from Stansted to Katowice on 9 August 2021. Dominik Leszczyński was away at the time. Earlier that morning, Mr Fehmi sent a WhatsApp message to Blazej Stodulkiewicz to say he was taking off soon. Mr Stodulkiewicz replied “there will be driver waiting for you at the airport, then I and Wirginia will [meet] you in Psary”

The evidence of what was going on during the meeting tends to suggest that those who were intended to be present were present. Later that morning Mr Fehmi emailed Mr Gillies at MacCap to say he had checked the Psary facilities and found them impressive. He looked forward to an anticipated call at 4pm that day and noted that was “with the team here now”. The 4pm meeting took place, and Mr Fehmi told me Dominik joined from his holiday.

Describing the meeting Mr Fehmi recalled that he met Aneta Kulik from the Defendant’s “commercialisation” team. There was no suggestion that she was anyone other than the “Ms Aneta” referred to in the 6 August 2021 email. Speaking of the impressions he formed on the day, he said in evidence:

“Wirginia came across as very knowledgeable and competent. When I described Xtellus and my position at Xtellus to her, it was clear she understood the role I was playing in securing the deal with Macquarie under the letter of engagement and took it upon herself to take me on an extended tour of the multiple sites to be covered by the funding facility. Wirginia seemed keen to present the business in its entirety as I believe she saw the potential for further collaboration down the line…. in this respect, I felt that she valued Xtellus’ contribution and the opportunities we could offer as a long-term partner”

The evidence of what happened after the meeting also appears to be consistent with Mr Fehmi’s recollection. On 11 August 2021 Mr Fehmi emailed Dominik Leszczyński, Wirginia Leszczyńska and Blazej Stodulkiewicz. He wrote:

“Dear All,

I am satisfied and find that Wirginia Leszczyńska met Mr Fehmi on 9 August 2021 and showed him around the facilities in the manner he described in evidence. The evidence points in only one direction, and is once again, overwhelming. It is plain that Wirginia Leszczyńska’s involvement was seen as important. I formed the view that Mr Fehmi’s opinion that Wirginia Leszczyńska was “very knowledgeable and competent” was commonly held and accurate. The preparations for the meeting centred on Wirginia Leszczyńska’s role. Mr Fehmi was told he would meet her and had a clear recollection of the day. When he emailed Blazej Stodulkiewicz, Wirginia Leszczyńska and Dominik Leszczyński after the meeting he singled out Dominik Leszczyński as the one person he had not met in person.

In my view the thrust of Wirginia Leszczyńska’s evidence was that she was not at the meeting. I reject that evidence in its entirety. The disclosure of documents not adduced into evidence and which I have not seen does not assist. I accept Mr Fehmi’s evidence about the meeting.